In this particular instance, I’m quick to say that I am closer to the conservative outcome (which is held also by many libertarians) that businesses shouldn’t be forced to serve customers they don’t want to. Though I wouldn’t limit the justification to some vague religious grounds (plenty of Christians have no problem with same-sex marriage, for instance) but to whatever a business owner believes. I say this even though I, like my colleague Ronald Bailey, who grew up in the segregated South, believe that the Civil Rights Act of 1964 was a proper and necessary law. During the days of racial segregation (an era that also kept women as a class from participating fully in commercial life), there were many state and local ordinances and customs that carried the force of law that made it impossible for blacks to get service anywhere. Thank god we changed that; we are a genuinely better country for accepting more and more types of people, communities, and individuals.

In today’s world, there are virtually no places that are not accommodating to all sorts of racial, ethnic, sexual, and other minorities. In the handful of cases of where bakers have been fined for not providing services, there is no doubt that another nearby business would have happily served them and there is something extremely disturbing about the state fining owners or sending them to counseling and therapy. I also think that in a world of Yelp and other reputational systems, it’s easy enough to publicize not simply establishments that give bad service but refuse to serve certain types of people. The amount of redress available to everyone these days (such as conservatives vainly trying to force Target into changing its bathroom policies) is a great and wonderful thing (though even this can go wrong).

However, whether these are pure instances of “religious liberty” being undermined is not really clear to me, especially when conservatives refuse to engage in good-faith arguments about either the larger issue of antidiscrimination laws or the clear-cut violations of law by government actors in discriminating against gays and lesbians. Yes, it is surely wrong that bakers and photographers have been fined or even run out of business for not being pro-gay marriage, but what do you say about the state discriminating against individuals for decades? When Kim Davis, a clerk in Rowan County, Kentucky refused to issue marriage licenses to same-sex couples because of her religious beliefs, she was hailed by the likes of Mike Huckabee and Ted Cruz as a martyr for religious liberty and became perhaps the only public-sector worker ever cheered by right-wingers for doing nothing while drawing a taxpayer-funded paycheck. In fact, she was patently discriminating against individuals as an agent of the state, which is utterly unacceptable. Not only that, for a while, she didn’t let anyone else in her office issue licenses, either.